Harrell v. State, 49 So. 805

Harrell v. State

49 So. 805 | Ala. | 1909

DENSON, J.

The defendant was convictéd: of mhrdér in the1 second degree, and-has appealed-from the judgment? of conviction. - :

Section 6256 of the .Code.of 1907 provides that the transcript need not contain-the organization of the grand jury which found the indictment, unless some question was raised thereon- before the trial .court. Now,' even if it can be said of the present transcript that it-fails to show the organization of the- grand jury, still this can avail the defendant- nothing. The record - fails to -show that any question was raised in respect to the organization. — Hatch’s Case, 144 Ala. 50, 40 South 113; Tipton’s Case, 140 Ala. 39, 37 South. 231.

The record shows that the term of the court at which the indictment was found was held by the supernumerary judge; and it is here insisted (for the first time) that the record fails to affirmatively show that the judge of the Fifth circuit, Hon. S. L. Brewer, failed to attend or to hold the court. We are of the opinion, and so hold, that the record, in specifically setting forth that the supernumerary judge held the court, affirmatively shows that Judge Brewer failed to attend or to hold the court, and that supernumerary judge properly presided.— Peel’s Case, 144 Ala. 125, 39. South 251; Code 1907, § 3279.

Only one'question is presented by the bill of exceptions for determination, and that arises on the refusal of the-court to give a charge requested by- the defendant! The .defendant claimed that the gun was accidently discharged. ‘His statement in this regard Is the only testimony tending to show the manner in which the gun was handled at the time it was fired; and, after carefully considering same, we are convinced that it impels any inference of that gross negligence oh the part, of-the-defendant, which, is necessary-to¡-supply ’the place of direct *94criminal intent (Fitzgerald’s Case, 112 Ala. 34, 20 South. 966), thus leaving the case as one in which an intentional firing of the gun was necessary to be shown, to make the defendant guilty of crime. In this view, the charge requested asserts a correct proposition of law, and its. refusal constitutes reversible error. Of course, it is for the jury to determine the truth or falsity of the defendant’s testimony, and therefore of his claim that the shooting was accidental, and we do not mean to take this question from that tribunal, but simply hold that, under the testimony, it was necessary to a conviction that the jury should believe that the gun was intentionally fired.

For the refusal to give the charge, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.